Braun v. Soldier Of Fortune Magazine, Inc.

968 F.2d 1110 (11th Cir. 1992)

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Nature of the Case

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Facts

Savage submitted a personal service advertisement to D. After several conversations between Savage and D's advertising manager, Joan Steel, the following advertisement ran in the June 1985 through March 1986 issues of D: GUN FOR HIRE: 37-year-old professional mercenary desires jobs. Vietnam Veteran. Discrete [sic] and very private. Bodyguard, courier, and other special skills. All jobs considered. Phone (615) 436-9785 (days) or (615) 436-4335 (nights), or write: Rt. 2, Box 682 Village Loop Road, Gatlinburg, TN 37738. Savage testified that he had no intention of obtaining anything but legitimate jobs. The overwhelming majority of the 30 to 40 phone calls a week he received in response to his ad sought his participation in criminal activity such as murder, assault, and kidnapping. The ad also generated at least one legitimate job as a bodyguard, which Savage accepted. Bruce Gastwirth began seeking to murder his business partner, Richard Braun. Gastwirth enlisted the aid of another business associate, John Horton Moore, and together they arranged for at least three attempts on Braun's life, all of which were unsuccessful. Responding to Savage's ad, Gastwirth and Moore contacted him in August 1985 to discuss plans to murder Braun. Savage, Moore, and another individual, Sean Trevor Doutre, went to Braun's suburban Atlanta home. As Braun and his sixteen-year-old son Michael were driving down the driveway, Doutre stepped in front of Braun's car and fired several shots into the car with a MAC 11 automatic pistol. The shots hit Michael in the thigh and wounded Braun as well. Braun managed to roll out of the car, but Doutre walked over to Braun and killed him by firing two more shots into the back of his head as Braun lay on the ground. P sued D for the wrongful death of their father. Ps introduced evidence of newspaper and magazine articles published prior to Braun's murder which described links between D personal service ads and a number of criminal convictions including murder, kidnapping, assault, extortion, and attempts thereof. Law enforcement officials had contacted D staffers on two separate occasions in connection with investigations of crimes -- a solicitation to commit murder in Houston, Texas, and a kidnapping in New Jersey -- linked to D personal service ads. D's employees testified that they were not aware of other crimes connected with D ads prior to running Savage's ad. P got the verdict. P accepted remittitur reducing punitive damages. D appealed.